Orissa High Court
Bhakta Mahala vs State Of Odisha on 1 July, 2024
Author: D. Dash
Bench: D. Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRA No.53 of 1992
In the matter of an Appeal under Section-36-B of the Narcotic
Drugs and Psychotropic Substances Act, 1985 read with Section- 374
of the Code of Criminal Procedure, 1973 and from the judgment
of conviction and order of sentence dated 7th February 1992
passed by the learned Sessions Judge, Balangir in Sessions Case
No.69 of 1991.
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Bhakta Mahala .... Appellant
-versus-
State of Odisha .... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode:
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For Appellant - Mr. S.C. Mohanty,
Advocate.
For Respondent - Mr. P.K. Mohanty,
Additional Standing Counsel.
CORAM:
MR. JUSTICE D. DASH
DATE OF HEARING :20.06.2024: DATE OF JUDGMENT:01.07.2024
D.Dash, J. The Appellant, by filing this Appeal, has assailed the
judgment of conviction and order of sentence dated 7th February
1992 passed by the learned Sessions Judge, Balangir in Sessions
Case No.69 of 1991 arising out of G.R. Case No. 478 of 1991
corresponding to Balangir Sadar P.S. Case No.104 of 1991.
CRA NO.53 OF 1992
The Appellant (accused) has been found guilty for offence
under section-20(a)(i) of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (for short 'the NDPS Act') and accordingly, he
having been convicted thereunder had been sentenced to
undergo rigorous imprisonment for a period of one year.
2. Prosecution case is that on 27.07.1991, the Sub-Inspector of
Police (P.W.3) having received reliable information as regards
cultivation of cannabis/ganja plants at the Potala Bari of the
accused, he (P.W.3) and others had gone there. It was found that
in the said Bari, the accused had grown two ganja plants which
were than uprooted and seized under seizure list, Ext.1. The
F.I.R.(Ext.3) being lodged, case was registered, and investigation
commenced. On completion of investigation, Final Form was
submitted for placing the accused to face the trial for commission
of offence under section-20(a)(i) of the NDPS Act.
3. The Trial Court having gone through the evidence of P.Ws.
1 to 3 as well as the documents admitted in evidence from the
side of the prosecution and marked Exts.1 to 4 has held that that
the prosecution has proved the charge against the accused
beyond reasonable doubt through clear, cogent and acceptable
evidence.
Accordingly, the accused being convicted for the said
offence under section-20(a)(i) of the NDPS Act, has been
sentenced as aforestated.
CRA NO.53 OF 1992
4. Mr. S.C. Mohanty, learned Counsel for the Appellant,
placing the evidence of P.Ws. 1, 2 and 3 submitted that the Trial
Court on the basis of the same ought not to have held the
accused to have been involved in growing those two seized ganja
plants. He further submitted that there is absolutely no evidence
on record to show that the accused being the owner of the said
Bari had planted those two plants. According to him, there is also
no evidence to connect the accused with the growing of the said
plants in proving that the accused was taking all such care in
growing said two plants either by watering, cleaning, manuring
etc. He, therefore, submitted that the finding of guilt against the
accused as has been returned by the Trial Court cannot be
sustained.
5. Learned Additional Government Advocate submitted all in
favour of the finding of guilt fastened against the accused.
According to him, all the prosecution witnesses having directly
implicated the accused in growing said ganja plants, the Trial
Court has rightly convicted the accused under section-20(a)(i) of
the NDPS Act.
6. Keeping in view the submissions made; I have carefully
read the judgment passed by the Trial Court and I have also
extensively travelled through the evidence adduced by the
prosecution witnesses i.e. P.Ws. 1 to 4.
CRA NO.53 OF 1992
7. In order to address the rival submission and judge the
sustainability of the finding of guilt against the accused as has
been rendered by the Trial Court, this Court is now called upon
to examine the evidence of the prosecution witnesses.
P.W.1 in clear terms has stated that when the police people
arrived, they asked him to lead to the Bari of the accused and
then the accused was not present in the Bari. So in that way
accused is not being connected with the Bari. It is also stated by
him, that they then entered into the Bari of the accused and that
the accused and shown two ganja plants to have been grown
there which were seized.
As per evidence of P.W.2, the Revenue Inspector, the land
in question is a piece of Government land. He has not been able
to say as to whether the accused was in possession of the same. It
is his evidence that no record is available in the office attributing
the possession of the said piece of Government land to the
accused. When such is the evidence of P.Ws. 1 and 2, it has been
stated by P.W.3 that the accused was present when they arrived
at the Bari in question, which is stated otherwise by P.W.1 and
also when P.W.3 states that all taken of such plants for their
growth was taken by the accused, he admittedly has no direct/
persons knowledge and he also does not cite any prior occasion
about such activity of accused being so watched by him.
CRA NO.53 OF 1992
8. The evidence of P.Ws.1, 2 and 3 do not suggest that the
land in question was in exclusive possession of the accused, and
none else was having the access to the same nor there was any
scope for any one to enter into the said Bari. In such state of
affair, in the evidence, this Court is of the considered view that
the Trial Court is not right in holding that the accused had grown
those two ganja plants on that piece of land and thus, the
cultivation of said ganja plants is attributable to him so as to be
held liable under section-20(a)(i) of the NDPS Act.
9. In view of all the aforesaid, this Court is of the view that
the judgment of conviction and order of sentence impugned in
this Appeal cannot be sustained. Accordingly, it is held that the
accused is entitled to be acquitted of the charge under section-
20(a)(i) of the NDPS Act. Therefore, the impugned judgment of
conviction and order of sentence are hereby set aside.
10. The Appeal is allowed. The judgment of conviction and
order of sentence dated 7th February 1992 passed by the learned
Sessions Judge, Balangir in Sessions Case No.69 of 1991 are
hereby set aside.
(D. Dash),
Judge.
Narayan
CRA NO.53 OF 1992
